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Full-Text Articles in Law
Hard Cases Under The Convention On The International Sale Of Goods: A Proposed Taxonomy Of Interpretative Challenges, H. Allen Blair
Hard Cases Under The Convention On The International Sale Of Goods: A Proposed Taxonomy Of Interpretative Challenges, H. Allen Blair
Duke Journal of Comparative & International Law
No abstract provided.
Contracting For State Intervention: The Origins Of Sovereign Debt Arbitration, W. Mark C. Weidemaier
Contracting For State Intervention: The Origins Of Sovereign Debt Arbitration, W. Mark C. Weidemaier
Law and Contemporary Problems
No abstract provided.
The Limits Of Advocacy, Amanda Frost
The Limits Of Advocacy, Amanda Frost
Duke Law Journal
Party control over case presentation is regularly cited as a defining characteristic of the American adversarial system. Accordingly, American judges are strongly discouraged from engaging in so-called "issue creation"-that is, raising legal claims and arguments that the parties have overlooked or ignored-on the ground that doing so is antithetical to an adversarial legal culture that values litigant autonomy and prohibits agenda setting by judges. And yet, despite the rhetoric, federal judges regularly inject new legal issues into ongoing cases. Landmark Supreme Court decisions such as Erie Railroad Co. v. Tompkins and Mapp v. Ohio were decided on grounds never raised …
Living Originalism, Thomas B. Colby, Peter J. Smith
Living Originalism, Thomas B. Colby, Peter J. Smith
Duke Law Journal
Originalists routinely argue that originalism is the only coherent and legitimate theory of constitutional interpretation. This Article endeavors to undermine those claims by demonstrating that, despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally agree only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the "writtenness" of the Constitution necessitates a fixed constitutional meaning, and that courts that see …
The Warp And Woof Of Statutory Interpretation: Comparing Supreme Court Approaches In Tax Law And Workplace Law, James J. Brudney, Corey Ditslear
The Warp And Woof Of Statutory Interpretation: Comparing Supreme Court Approaches In Tax Law And Workplace Law, James J. Brudney, Corey Ditslear
Duke Law Journal
Debates about statutory interpretation-and especially about the role of the canons of construction and legislative history-are generally framed in one-size-fits-all terms. Yet federal judges-including most Supreme Court Justices-have not approached statutory interpretation from a methodologically uniform perspective. This Article presents the first in-depth examination of interpretive approaches taken in two distinct subject areas over an extended period of time. Professors Brudney and Ditslear compare how the Supreme Court has relied on legislative history and the canons of construction when construing tax statutes and workplace statutes from 1969 to 2008. The authors conclude that the Justices tend to rely on legislative …
Harmonization Without Consensus: Critical Reflections On Drafting A Substantive Patent Law Treaty, Jerome H. Reichman, Rochelle Cooper Dreyfuss
Harmonization Without Consensus: Critical Reflections On Drafting A Substantive Patent Law Treaty, Jerome H. Reichman, Rochelle Cooper Dreyfuss
Duke Law Journal
In this Article, we contend that the World Intellectual Property Organization's proposed Substantive Patent Law Treaty (SPLT) is premature. Developing countries are struggling to adjust to the heightened standards of intellectual property protection required by the TRIPS Agreement of 1994. With TRIPS, at least, these countries obtained side payments (in the form of trade concessions) to offset the rising costs of knowledge products. A free-standing instrument, such as the SPLT, would shrink the remaining flexibilities in the TRIPS Agreement with no side payments and no concessions to the catch-up strategies of developing countries at different stages of technological advancement. More …
The Asean-China Free Trade Area (Acfta): A Legal Response To China’S Economic Rise?, Alyssa Greenwald
The Asean-China Free Trade Area (Acfta): A Legal Response To China’S Economic Rise?, Alyssa Greenwald
Duke Journal of Comparative & International Law
No abstract provided.
Understanding The Unoriginal: Indeterminant Originalism And Independent Interpretation Of The Alaska Constitution, Michael Schwaiger
Understanding The Unoriginal: Indeterminant Originalism And Independent Interpretation Of The Alaska Constitution, Michael Schwaiger
Alaska Law Review
No abstract provided.
Of Treaties And Torture: How The Supreme Court Can Restrain The Executive, Jeffrey C. Goldman
Of Treaties And Torture: How The Supreme Court Can Restrain The Executive, Jeffrey C. Goldman
Duke Law Journal
No abstract provided.
The Rule Of (Administrative) Law In International Law, David Dyzenhaus
The Rule Of (Administrative) Law In International Law, David Dyzenhaus
Law and Contemporary Problems
No abstract provided.
Content And Context: The Contributions Of William Van Alstyne To First Amendment Interpretation, Rodney A. Smolla
Content And Context: The Contributions Of William Van Alstyne To First Amendment Interpretation, Rodney A. Smolla
Duke Law Journal
No abstract provided.
“You Have Been In Afghanistan”: A Discourse On The Van Alstyne Method, Garrett Epps
“You Have Been In Afghanistan”: A Discourse On The Van Alstyne Method, Garrett Epps
Duke Law Journal
No abstract provided.
The Baker Doctrine And The New Federalism: Developing Independent Constitutional Principles Under The Alaska Constitution, Thomas V. Van Flein
The Baker Doctrine And The New Federalism: Developing Independent Constitutional Principles Under The Alaska Constitution, Thomas V. Van Flein
Alaska Law Review
No abstract provided.
The “Standard” Administrative Procedure For Supervising And Enforcing Ec Law: Ec Treaty Articles 226 And 228, Alberto J. Gil Ibanez
The “Standard” Administrative Procedure For Supervising And Enforcing Ec Law: Ec Treaty Articles 226 And 228, Alberto J. Gil Ibanez
Law and Contemporary Problems
Ibanez examines the European Commission's policy and strategy in enforcement proceedings and attempts to discover the predominant European model, if such a model exists, for enforcing and supervising EC law. Ibanez focuses on some general difficulties in analyzing supervision and enforcement at the European level and the problem of implementation in more general terms.
Discretion And The Criminalization Of Environmental Law, Charles J. Babbitt, Dennis C. Cory, Beth L. Kruchek
Discretion And The Criminalization Of Environmental Law, Charles J. Babbitt, Dennis C. Cory, Beth L. Kruchek
Duke Environmental Law & Policy Forum
No abstract provided.
Use Of Lawyer-Client Privileged Information By In-House Counsel Whistleblowers In Their Own Retaliatory Discharge Actions Under The Environmental Laws, David A. Drachsler
Use Of Lawyer-Client Privileged Information By In-House Counsel Whistleblowers In Their Own Retaliatory Discharge Actions Under The Environmental Laws, David A. Drachsler
Duke Environmental Law & Policy Forum
No abstract provided.
The Antebellum Political Background Of The Fourteenth Amendment, Garrett Epps
The Antebellum Political Background Of The Fourteenth Amendment, Garrett Epps
Law and Contemporary Problems
Epps presents information concerning the historical context of the Fourteenth Amendment. Among other implications, the Amendment should be viewed as an effort to defend the national government from control by transient majorities or undemocratic factions in the states.
Comparative Constitutional Reasoning: The Law And Strategy Of Selecting The Right Arguments, Taavi Annus
Comparative Constitutional Reasoning: The Law And Strategy Of Selecting The Right Arguments, Taavi Annus
Duke Journal of Comparative & International Law
No abstract provided.
Interaction Between Trade And Competition: Why A Multilateral Approach For The United States?, Seung Wha Chang
Interaction Between Trade And Competition: Why A Multilateral Approach For The United States?, Seung Wha Chang
Duke Journal of Comparative & International Law
No abstract provided.
Dynamic Content: The Strategic Contingency Of International Law, Randall H. Cook
Dynamic Content: The Strategic Contingency Of International Law, Randall H. Cook
Duke Journal of Comparative & International Law
No abstract provided.
The Liability Of Alaska Mental Health Providers For Mandated Treatment, Marshall L. Wilde
The Liability Of Alaska Mental Health Providers For Mandated Treatment, Marshall L. Wilde
Alaska Law Review
No abstract provided.
“Mediation-Only” Filings In The Delaware Court Of Chancery: Can New Value Be Added By One Of America’S Business Courts?, Leo E. Strine Jr.
“Mediation-Only” Filings In The Delaware Court Of Chancery: Can New Value Be Added By One Of America’S Business Courts?, Leo E. Strine Jr.
Duke Law Journal
The following Essay by Vice Chancellor Leo Strine of the Delaware Court of Chancery advocates the enactment of legislation that authorizes the Court of Chancery to handle "mediation-only" cases. Such cases would be filed solely to invoke the aid of a Chancellor to mediate a business dispute between parties. By advocating this innovative dispute resolution option, the Essay embraces a new dimension of the American judicial role that allows American businesses to more efficiently solve complicated business controversies. The mediation-only device was conceived in 2001 by members of the Delaware judiciary, including Vice Chancellor Strine, in consultation with members of …
Outsourcing Government Regulation, Sidney A. Shapiro
Outsourcing Government Regulation, Sidney A. Shapiro
Duke Law Journal
No abstract provided.
The Ambiguity Of Gatt Article Xxi: Subtle Success Or Rampant Failure, Peter Lindsay
The Ambiguity Of Gatt Article Xxi: Subtle Success Or Rampant Failure, Peter Lindsay
Duke Law Journal
No abstract provided.
Overcoming The Myth Of Free Will In Criminal Law: The True Impact Of The Genetic Revolution, Matthew Jones
Overcoming The Myth Of Free Will In Criminal Law: The True Impact Of The Genetic Revolution, Matthew Jones
Duke Law Journal
No abstract provided.
Copyright As A Rule Of Evidence, Douglas Lichtman
Copyright As A Rule Of Evidence, Douglas Lichtman
Duke Law Journal
Many copyright doctrines serve to exclude from the copyright regime cases particularly prone to evidentiary complexity. The implicit logic is that, for these cases, the social costs of litigation would likely outweigh the social benefits derived from offering copyright protection in the first place. Doctrines that serve this evidentiary function include some doctrines for which an evidentiary purpose is readily apparent (for example, the requirement that eligible works be fixed in tangible form), and some for which the link is quite subtle (for example, the rule against protecting work that lacks creativity). Understanding these doctrines in this light helps to …
The Juvenile Death Penalty And International Law, Curtis A. Bradley
The Juvenile Death Penalty And International Law, Curtis A. Bradley
Duke Law Journal
The United States is almost alone among nations in permitting the execution of juvenile offenders. Citing this fact, along with a variety of legal and historical materials, litigants and scholars are increasingly claiming that the United States' use of the juvenile death penalty violates international law. This Article examines the validity of this claim, from the perspective of both the international legal system and the U. S. legal system. Based on a detailed examination of the United States' interaction with treaty regimes and international institutions since the late 1940s, the Article concludes that the international law arguments against the juvenile …
A Copernican View Of Health Care Antitrust, William M. Sage, Peter J. Hammer
A Copernican View Of Health Care Antitrust, William M. Sage, Peter J. Hammer
Law and Contemporary Problems
Sage and Hammer use the analogy of Copernican astronomy to suggest that understanding the dramatic change wrought by managed care requires a conceptual reorientation regarding the meaning of competition in health care and its appropriate legal and regulatory oversight. Both share the belief that misperceiving the world limits potential for technical and social progress.
The Land Use Environmental Law Distinction: A Geo-Feminist Critique, Nancy Perkins Spyke
The Land Use Environmental Law Distinction: A Geo-Feminist Critique, Nancy Perkins Spyke
Duke Environmental Law & Policy Forum
No abstract provided.
The Logic Of Scarcity: Idle Spectrum As A First Amendment Violation, Stuart Minor Benjamin
The Logic Of Scarcity: Idle Spectrum As A First Amendment Violation, Stuart Minor Benjamin
Duke Law Journal
The Supreme Court has distinguished the regulation of radio spectrum from the regulation of printing presses, and applied more lenient scrutiny to the regulation of spectrum, based on its conclusion that the spectrum is unusually scarce. The Court has never confronted an allegation that government actions resulted in unused or underused frequencies, but there is good reason to believe that such government-created idle frequencies exist. Government limits on the number of printing presses almost assuredly would be subject to heightened scrutiny and would not survive such scrutiny. This Article addresses the question whether the scarcity rationale-or any other reasoning-supports distinguishing …